Suspected Terrorist

Multimillionaire John Gilmore is suing the government to remain anonymous. Is this the last stand for privacy?

Brian Doherty from the August/September 2003 issue

(Page 2 of 6)

The government wants the case thrown out of court. It wants to convince Judge Illston that the ID regulation in question is "sensitive security information" and must remain secret. It also argues that precedent has established that burdens on just one mode of transportation do not limit the constitutional right to interstate travel, and that ID requests aren't really "searches" under Fourth Amendment law.

Judge Illston is exasperated when she can't figure out exactly what it is Gilmore is complaining about. His case appears to mix his specific claim of injury from the ID demand with complaints and fears about "no-fly" lists and passenger screening systems -- both the existing Computer Assisted Passenger Prescreening System (CAPPS) and the proposed, more thorough, CAPPS II.

It's all about public safety, Justice Department lawyer Joe Lobue tells the judge. The no-fly list is to identify people known to be a threat to aviation security. Systems like CAPPS II provide pattern clues that indicate people who might represent such a threat. We need to know who we are dealing with to make those security programs work.

The judge is equally tough on Lobue. Gilmore's lawyers claim that this mysterious regulation about ID is "void for vagueness," since citizens can't know precisely what the law requires. Lobue insists that it isn't:

Judge: What is the rule, if at all, concerning identification?

Lobue repeats why the government thinks that asking for ID is vital for safety purposes.

Judge: I understand, you said all of that. You were saying the rule is not void for vagueness and we can move on. I just want to know what the rule is that isn't void.

Lobue: If you are asking me to disclose what's in the security directives, I can't do it.

Privacy vs. Openness

The Justice Department hoped it would ground Gilmore's suit. But Illston doesn't accept its motion to dismiss on the spot. As of this writing (late May), she is still contemplating whether the case will go any further, and in what manner. Gilmore's lawyer, Bill Simpich, is confident the case will continue, and is prepared to appeal any decision to dismiss.

After the hearing Gilmore is passing out little buttons with an image of a plane and the slogan "suspected terrorist." Charmed, I pin it to my suit coat. Leaving Gilmore later after lunch in the courthouse cafeteria, I take it off and bury it in the inner pocket of the coat, where I make sure it remains until I've safely flown home to Los Angeles.

Gilmore's efforts will almost certainly prove futile. Even if he reveals the government's secret ID demands and has them rescinded, it won't prevent what happened to him from happening again. The most likely outcome will be airlines declaring that, even absent any federal regulation, it's their policy that everyone shows a government-issued ID before getting on a plane. If that happens, Gilmore is prepared to sue the airlines. He doesn't think such a policy could legitimately be considered separate from a state demand in such a heavily regulated industry.

Gilmore thinks most Americans aren't nearly tenacious enough in defense of their freedoms. "The biggest threat [to privacy] is public complacency," he tells me. Indeed, most Americans -- trained to flash ID as naturally as smiles -- would find Gilmore's crusade eccentric if not dangerously nuts. He hopes his fight will prove educational for them, even if he fails. "Then the society that results will educate people. But it will be a shame, because it will be harder to win that ground back," he says.

Gilmore is on the front lines of a battle to decide just what privacy will -- or can -- mean in 21st-century America. The federal government is working on at least two huge programs designed to gather enormous quantities of computer-available data and run algorithms to decide how individuals will be treated. One is CAPPS II, Gilmore's special concern. This program builds on the aforementioned Computer Assisted Passenger Prescreening System, which uses only information in the airlines' reservation system plus a secret government-supplied algorithm to choose who gets set aside for special screening. CAPPS II is intended to use a wider range of commercial and governmental databases to help decide who gets directly on a plane, who gets set aside for special inspection, and who gets the cops called on him forthwith.

The other program, more wide-ranging and ominous, was originally known as Total Information Awareness but is now being called Terrorism Information Awareness (TIA). Although Congress demanded an explanation of the program's intent and privacy effects and forbids its actual deployment pending legislative approval, TIA's parent agency, the Defense Advanced Research Projects Agency, is gleefully forging ahead, paying private contractors to begin developing the system. Shrouded in rumor and panic, TIA is apparently meant to mine data from the full body of available information, from both public and private sources, in order to find patterns that hint at nefarious goings-on.

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